Wisconsin Comparative Fault Law — How It Affects Your Personal Injury Case | Mingo & Yankala, S.C.
Wisconsin Comparative Fault Law — How It Affects Your Personal Injury Case
By Mark J. Mingo, Mingo & Yankala, S.C. | Milwaukee, Wisconsin
When you are seriously injured in an accident in Wisconsin, one of the first tactics you will encounter from the at-fault party’s insurance company is an argument that you share some of the responsibility. This is not coincidence. It is strategy. Under Wisconsin’s comparative fault system, every percentage of fault assigned to you reduces the compensation you receive. Assigning you even 20% of the fault on a $200,000 case saves the insurance company $40,000.
Understanding how Wisconsin’s comparative fault law works — and how insurance companies try to use it against you — is essential to protecting your recovery.
The Wisconsin Comparative Fault Statute — Wis. Stat. § 895.045
Wisconsin’s comparative fault law is codified at Wisconsin Statute § 895.045. The statute establishes a modified comparative fault system with a 51% bar. Here is what that means in practice:
- You may recover even if you share some fault — as long as your percentage of fault does not exceed 51%.
- Your recovery is reduced proportionally — if you are found 30% at fault and your total damages are $300,000, you recover $210,000.
- If your fault exceeds 51%, you recover nothing — this is the “bar.” Once your fault exceeds the majority threshold, the statute eliminates your right to recover entirely.
When there are multiple defendants, fault is apportioned among all parties — the plaintiff, each defendant, and any other responsible parties — and the percentages must add up to 100%.
How Fault Is Determined in Wisconsin Personal Injury Cases
Fault in Wisconsin personal injury cases is determined by the jury — or, in cases that settle before trial, by the negotiated positions of the parties. The jury considers all available evidence and assigns a percentage of fault to each party based on how their conduct contributed to causing the accident and resulting injuries.
The evidence used to establish fault includes:
- The police accident report and any citations issued
- Physical evidence at the scene (skid marks, debris, vehicle positions)
- Witness testimony
- Electronic data (ECM data, GPS records, ELD records in truck cases; dashcam footage)
- Photographs and video of the scene
- Expert accident reconstruction testimony
- Traffic laws and regulations applicable to the situation
- Statements made by the parties at or after the accident
How Insurance Companies Use Comparative Fault Against Injured People
Before representing injured people, attorney Mark Mingo spent years on the defense side representing major insurance companies. He sat across the table from injured people and their attorneys and understood the comparative fault argument from the inside. Here is how adjusters and defense attorneys deploy it:
The Early Recorded Statement
Insurance adjusters call injured people within hours or days of an accident and ask for recorded statements. These statements are reviewed by the adjuster and defense team for any admission — however innocent-sounding — that can be used to support a comparative fault argument. “I didn’t see it coming,” “I might have been going a little fast,” “I was reaching for my phone” — each of these is a gift to the defense. This is why you should never give a recorded statement without speaking to an attorney first.
Traffic Violations and Citations
Any citation issued to you at the scene of the accident will be used as evidence of your fault. Even a citation that seems minor — failing to signal, rolling a stop sign — can become a fault argument in the hands of an experienced defense attorney.
Pre-Existing Conditions as “Fault”
Insurance companies sometimes conflate comparative fault with pre-existing conditions, arguing that because you had a prior injury to the same body part, you somehow contributed to your damages. This is legally distinct from comparative fault — it is an argument about causation rather than fault — but it is worth understanding that insurers will use every available argument to reduce what they pay.
The “You Could Have Avoided It” Argument
In premises liability cases, comparative fault often takes the form of the “open and obvious” defense: the property owner argues that the hazard was visible and that a reasonable person would have seen it and avoided it. In car accident cases, it may take the form of arguing that a more defensive driver would have had time to stop or swerve. These arguments are standard defense playbook. They are also frequently overstated and successfully rebutted by a prepared plaintiff’s attorney.
Defending Against Comparative Fault Arguments
Effective defense against comparative fault arguments begins at the scene of the accident and continues through every phase of the case. Here is what it looks like in practice:
Thorough Accident Investigation
We retain accident reconstruction experts when necessary to establish through physics and engineering analysis what actually happened — vehicle speeds, stopping distances, sight lines, and the sequence of events. These experts can often demonstrate that the comparative fault argument being asserted is not consistent with the physical evidence.
Witness Development
Independent witnesses — people with no stake in the outcome — are among the most powerful evidence available in a personal injury case. We interview and document witness accounts early, before memories fade.
Electronic Evidence Preservation
In truck accident cases, ECM data, ELD records, and GPS data often establish exactly what the defendant’s vehicle was doing in the seconds before impact — which can directly refute comparative fault arguments directed at the plaintiff.
Challenging Improper Fault Attribution
Insurance companies sometimes assert comparative fault on facts that, under Wisconsin law, do not legally constitute fault at all. An experienced attorney recognizes these arguments and challenges them directly — in motion practice, in deposition, and at trial if necessary.
The 51% Bar and Why It Matters in Settlement Negotiations
The 51% bar is the reason comparative fault arguments are so aggressively pursued in Wisconsin. If a defendant can convince a jury — or persuade an unrepresented plaintiff — that the injured person was more than 51% at fault, the defendant pays nothing. Zero. Even if the injured person’s damages are real and documented and severe.
This reality shapes every settlement negotiation. An insurance company that believes it can reach a 51% fault finding at trial will offer very little. An insurance company that believes fault is clearly on their insured will offer more. Moving the needle on fault attribution — through investigation, expert analysis, and skilled negotiation — is often the most valuable thing an attorney does in a comparative fault case.
Comparative Fault in Wisconsin Wrongful Death Cases
Wisconsin’s comparative fault rules apply in wrongful death cases as well. If the person who was killed shared some responsibility for the accident, that fault percentage reduces the recovery of the surviving family members under Wis. Stat. § 895.04. The 51% bar applies — if the deceased is found more than 51% at fault, the family recovers nothing. This is an especially important consideration in motorcycle fatality cases, where defense attorneys frequently assert that the motorcyclist was speeding or riding unsafely.
Protecting Your Recovery Under Wisconsin’s Comparative Fault System
The most important thing you can do is hire an attorney before giving any statement to any insurance company. Statements made in the first hours and days after an accident — when you are in pain, disoriented, and unaware of the legal significance of your words — are the raw material of comparative fault arguments. Your attorney’s job is to ensure that the only narrative available to the defense is the one supported by the physical evidence.
Attorney Mark Mingo argued and won DeShaney v. Winnebago County, 489 U.S. 189 (1989) before the United States Supreme Court — one of the most significant Fourteenth Amendment decisions in American constitutional law, cited thousands of times by courts nationwide and taught in virtually every law school in the United States. He has been selected to Wisconsin Super Lawyers for 18 consecutive years, holds an AV Preeminent rating from Martindale-Hubbell, an Avvo rating of 10/10 (Superb), and is National Board Certified in Trial Practice by the NBTA. He has tried more than 100 personal injury cases to jury verdict in Wisconsin.
If you have been seriously injured in an accident in Wisconsin and an insurance company is claiming you share the fault, contact Mingo & Yankala, S.C. for a free, confidential evaluation. No fee unless we win.
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Frequently Asked Questions
What happens if both drivers were at fault in a Wisconsin car accident?
Both drivers can recover from each other — proportionally reduced by their own fault percentages — as long as neither is found more than 51% at fault. For example, if Driver A is 40% at fault and Driver B is 60% at fault, Driver A can recover 60% of their damages from Driver B, but Driver B cannot recover anything from Driver A because Driver B’s fault exceeds 51%.
Can comparative fault be raised in a premises liability case?
Yes. Property owners frequently argue that the injured person was not paying attention, was wearing inappropriate footwear, or otherwise contributed to their own fall. These are comparative fault arguments. Wisconsin’s § 895.045 applies to premises liability cases just as it does to vehicle accident cases.
Does it matter if I got a traffic ticket at the scene of the accident?
A traffic citation is evidence of fault — but it is not conclusive. Citations are issued by law enforcement officers making quick observations at accident scenes without the benefit of full investigation. A citation for following too closely, for example, does not mean you were 51% at fault for the accident. An attorney can challenge the circumstances of the citation and present evidence of the other party’s substantially greater fault.
Can I recover if I was not wearing a seatbelt?
Wisconsin law specifically limits the use of seatbelt non-compliance as a comparative fault argument. Under Wis. Stat. § 347.48(2m)(d), failure to wear a seatbelt cannot be used to reduce a plaintiff’s recovery by more than 15% of their damages. This limitation was enacted by the Wisconsin legislature to prevent seatbelt use from becoming a major fault reduction tool in serious injury cases.
What role does an accident reconstruction expert play in comparative fault cases?
Accident reconstruction experts use engineering analysis, physics, and physical evidence to establish vehicle speeds, stopping distances, impact angles, and the sequence of events. In comparative fault cases, they can demonstrate through objective analysis that the fault attribution being asserted by the defense is not consistent with the physical evidence. Their testimony is often decisive in cases where fault is disputed.